Mr X and University College Cork

Whether UCC was justified in refusing the applicant's request for access to certain records in relation to expenses and related matters concerning UCC's Sociology Department for the calendar year 2012 to the date of the FOI request

Conducted in accordance with section 34(2) of the FOI Act

Background

On 23 January 2013, the applicant made an FOI request for "records relating to expenses incurred by UCC Sociology Dept... calendar year 2012 to date". The request went on to name certain individuals, to refer to certain invoices and to request an explanation of "the connection between the Sociology Dept and a private organisation called International Political Anthropology". The request also posed a series of questions to UCC and requested "a statement for publication". UCC's decision of 12 April 2013 was to release one record in full and to refuse access to the remaining records in their entirety on the basis that the records requested formed part of an internal audit review of the School of Sociology and Philosophy which was underway at the time of the FOI request. UCC relied on sections 20(1), 21(1)(a) and 21(1)(b) of the FOI Act for its refusal. The applicant made an internal review application on 16 April 2013 and UCC's internal review decision of 9 May 2013 affirmed its original decision. On 16 May 2013, the applicant sought a review by this Office of UCC's decision on the request.

In the course of this Office's review, UCC agreed to release the majority of the refused records to the applicant as the internal audit review had concluded and the relevant exemptions claimed no longer applied to the withheld records. These records issued to the applicant on 21 October 2014. UCC argued that the remaining parts of the records should be refused under sections 27(1)(b), 28(1), 30(1)(a) and 31(1)(c) of the FOI Act. During a telephone conversation with Ms. Mary Byrne, Investigator, of this Office, the applicant indicated that he would like this Office to issue a formal decision on the remaining withheld parts of the records. Accordingly, I have decided to conclude the review by way of a formal binding decision.

In carrying out my review, I have had regard to correspondence between UCC and the applicant as set out above; to the records at issue; copies of which were sent to this Office for the purposes of the Commissioner's review; to details of various contacts between this Office and UCC and details of various contacts between this Office and the applicant. I have had regard also to the provisions of the FOI Act. In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

The scope of this review is confined to assessing whether or not UCC was justified in refusing to fully release the remaining records of relevance to the applicant's request on the basis of sections 27(1)(b), 28(1), 30(1)(a) and 31(1)(c) of the FOI Act. The withheld information is contained in Records 3 and 5-13 held by the Department of Sociology and Record 2 held by the Office of Corporate and Legal Affairs. I should say here also that some parts of the applicant's original FOI request may not constitute valid requests for access to records, framed as they are as questions and comments on what appear to be allegations in relation to certain expenditure and behaviour.

It is important to be clear as to what is at issue in this review. It is not part of the function of the Information Commissioner to adjudicate on how public bodies perform their functions generally. This means that this Office is not investigating any complaints about UCC. The applicant is seeking access to records under section 7 of the FOI Act. The right of access created under the FOI Act is a right of access to records. Where a request is stated to be for information, the request is deemed to be for those records which disclose the information specified. While the FOI Act does not oblige public bodies to release information unless it appears in the records held, I would expect that a public body would consider any records which contain the information sought as being within the scope of the request. I understand that this is what happened in this case; I return to this issue below under the section 30(1)(a) heading.

Analysis and Findings

Section 27(1)(b)
Section 27(1)(b) provides for the refusal of financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation.

The parts of records withheld under section 27(1)(b) are contained in Records 5, 7 and 8 held by the Department of Sociology. The withheld details consists of the quantity and unit price of items/services purchased by UCC contained in seven invoices. I am satisfied that this information comes within the description "financial information". However, the essence of the test in section 27(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. This exemption protects information whose disclosure might reasonably be expected to result in a material financial loss or gain to the person to whom the information relates or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation.

UCC argued that release of the rates which various companies have charged UCC could prejudice the competitive position of those companies who provided goods or services. UCC contended that disclosure of rates charged would allow competitors to ascertain how much these companies charged UCC for their services and to use this information to their own advantage, resulting in a material disadvantage for the companies in question. The invoices in question relate to relatively small amounts of monies charged by four different companies for copies of journals, publications and for certain services in 2012. Given the nature and scale of what was provided and the costs involved, I do not see how this information is of such critical importance to the named supplier's competitors as to enable it to be said that it could reasonably be expected to result in a material financial loss to the companies involved. Accordingly, I find that section 27(1)(b) does not apply to these records.

For the sake of completeness, I should add that even if I were to find section 27(1)(b) to apply, the possibility of release of the withheld details in these records in the public interest under section 27(3) of the FOI Act would remain to be considered. Section 27(3) provides that a record to which section 27(1) is found to apply may still be released if the public interest would, on balance, be better served by granting than refusing to grant the request. There is a clear public interest in optimising openness, transparency and accountability in matters which relate, directly or indirectly, to the use of public funds. On the other hand I accept that there is a public interest in protecting against the harms outlined in section 27. However, given the nature of the information at issue in this case and the fact that the financial information contained in the records relate to prices charged two years ago, I am satisfied that the public interest would, on balance, be better served by the release of the parts of the records at issue.

Sections 28(1)
Section 28(1) of the FOI Act provides, subject to other provisions of section 28, that a public body shall refuse a request for a record where granting it would involve the disclosure of personal information about an identifiable individual.

The information withheld under section 28 are contained in Records 3, 5-12 held by the Department of Sociology and Record 2 held by the Office of Corporate and Legal Affairs and I am satisfied that the withheld details comprise the personal information of third parties. The requirements of section 43(3) mean that I cannot elaborate further on the information concerned other than to say that names, email addresses and personal phone numbers are included. I find the withheld details to be exempt under sections 28(1).
There are some circumstances, provided for at section 28(2), in which the exemptions at section 28(1) do not apply. Having examined the withheld details, I am satisfied that none of the circumstances identified at section 28(2) arise in this case. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of their information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. Accordingly, I find that section 28(2) does not apply to the withheld details.

Section 28(5) provides that a record, which is otherwise exempt under section 28(1), may be released in certain limited circumstances. The effect of section 28(5)(a) is that a record, which has been found to be exempt under section 28(1), may be released if it can be demonstrated that "on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld". In the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates.

Following the approach of the Supreme Court, a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") must be distinguished from a private interest for the purpose of section 28(5)(a). The language of section 28 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Accordingly, when considering section 28(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. This public interest has been served to a certain extent by the material released to the applicant to date. However, having regard to the content of the withheld details, I do not consider that their release would further serve the public interest to such an extent that a breach of the third parties' Constitutional rights to privacy is justified. Thus, I find that the withheld details should not be released further to section 28(5)(a) of the FOI Act.

Finally, it is necessary to consider whether section 28(5)(b) is of relevance. The effect of section 28(5)(b) is that a record, which has been found to be exempt under section 28(1), may still be released if it can be demonstrated that the grant of the request would benefit the third party or parties whose personal information is also contained in the records. The applicant has not made any case that the release to him of the personal information of the third parties would be of benefit to those parties, nor am I otherwise aware of any reason to think that this would be the case. I find that no right of access arises further to the provisions of section 28(5)(b) of the FOI Act.

Section 30(1)(a)
Although Record 13 held by the Department of Sociology and the withheld parts of Record 13 were not listed in the schedule which issued with the original decision, UCC stated that it considered this record under the fifth paragraph of the applicant's original request i.e. "explain the connection between the Sociology Dept and a private organisation called International Political Anthropology..." While this aspect of the applicant's original request is a request for an explanation as opposed to a request for records, UCC appears to have accepted the request as being for access to records held by it which might contain the information requested by the applicant.

Section 30(1)(a) provides that a public body may refuse to grant access to a record where the record contains information in relation to research being or to be carried out by or on behalf of the public body and disclosure before the completion of the research would be likely to expose the public body or researchers to serious disadvantage. The parts of Record 13 refused under section 30(1)(a) consist of a research proposal dated November 2012, an evaluation by the European Commission of that proposal and a follow up proposal which was derived from the first proposal. UCC stated that the refused documents contain detailed information about a collaborative piece of research, which would be managed by the Department of Sociology in UCC. It further stated that the proposal outlines in detail what the research project proposes to investigate, how the research teams plan to carry it out, who would be involved and a breakdown of the estimated costs of the research. UCC said that these documents are research which is to be carried out by UCC and release of this information would be likely to expose the researchers to serious disadvantage.

UCC stated that it is critical that these records are protected as externally funded research is one of the main ways in which universities have to generate income. It also stated that, for Irish universities to have a chance of success in the international funding market, they need to become part of international consortia of several universities in other countries. According to UCC, all of these partner institutions have a stake in protecting their core financial assets too, so that the disclosure of details by one impacts not only on the interests of that research professor and his/her institution, but on all of the other stakeholders too.

UCC stated that successful research proposals i.e. those research proposals that succeed in winning competitive funding never emerge off a 'blank slate'. Rather, they evolve and are built up gradually over many years, from the cumulative and progressive vision, interests and expertise of the leading research professors and their collaborators. A research proposal that eventually wins funding is typically a product that has been distilled and developed from numerous previous research proposals.

According to UCC, a research proposal does not usually succeed on the first, second or third occasion. The evaluations are fed back to the proposers, the research leaders use the feedback to develop and fine tune their thinking and, in the next funding cycle, the research team who have been working on their projects in the meantime, submit a revised proposal, or a new proposal, underpinned by their previous research work. What this means is that a research proposal developed by a team, even if it is not being currently funded, is still very much 'live', it is an asset, an intellectual property and it represents an investment of money, time, and expertise that has been carefully accumulated, and as such it ought to be carefully protected. UCC stated that the Professor in the Department of Sociology and his team of collaborators are still in place, they continue to collaborate and they are actively working on developing and refining new research proposals.

Section 30(1)(a) is an important exemption designed to protect the legitimate interests of public bodies and researchers. The Oxford Dictionary defines research as "the systemic investigation into and study of materials and sources in order to establish facts and reach new conclusions". I accept that the withheld details in Record 13 constitutes "research" for the purposes of section 30 and I also accept that this research is or will be carried out by UCC if it succeeds in receiving funding. I am of the opinion that this research can still be considered to be ongoing as the refusal of European funding was made in 2011 and it is reasonable to assume that this proposal could be submitted for funding in the future. As this research is a work in progress and is still incomplete, it seems to me that disclosure of this information at this time would be likely to expose UCC and its fellow researchers on this project to serious disadvantage. However, I would add that the Commissioner would be unlikely to accept that research of this nature would be protected indefinitely by this exemption. However, I am satisfied in this case that, as required by Section 30(1)(a), disclosure would be likely to expose UCC and its research partners to serious disadvantage. Accordingly, I find that section 30(1)(a) applies to the withheld details in Record 13.

Section 30(1) is subject to a public interest test as set out in section 30(2) of the FOI Act. Section 30(2) provides that a record to which section 30(1) is found to apply may still be released if the public interest would, on balance, be better served by granting than refusing to grant the request. Having concluded that the release of the information would be likely to expose UCC and its research partners to serious disadvantage, I must consider whether there are any public interest arguments which would justify the release of the information, despite the potential damage. Whilst there is the public interest in upholding the applicant's right of access under the FOl Act to the withheld details in Record 13, I accept that this is outweighed by the public interest in protecting the integrity and confidentiality of the research proposal to avoid unfair and serious disadvantage to the researchers involved and to UCC. Accordingly, I find that, on balance, the public interest is better served by refusing these records than by their being released.

The withheld details in Record 13 were also refused under section 27(1)(b) and section 31(1)(c). However, having already concluded that the withheld details are exempt from release in their entirety under section 30, and that the public interest is, on balance, better served by the withholding of these records, it is not necessary for me to consider further the application of sections 27 and 31 to these particular records.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the decision of UCC in this case by directing the release of the withheld parts of Records 5, 7 and 8 to which I have found that section 27 does not apply. I affirm the decision of UCC to refuse access to the parts of the records containing third party personal information (Records 2, 3, 5-12) and records relating to research material held by UCC (Record 13).

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.